Mohd.Latif v. State Of Punjab

204-2

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-M-17349-2022 Date of Decision:17.08.2023 Mohd. LaƟf ...PeƟƟoner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Praagbir S. Dhindsa, Advocate and Mr. KarƟk Bansal, Advocate for the peƟƟoner .

Mr. Karunesh Kaushal, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 09.06.2020 Sidhwan Bet, Ludhiana 15/25/61/85 of NDPS Act 1.

The peƟƟoner incarcerated for violaƟng the above-menƟoned provisions of NarcoƟcs Drugs and Psychotropic Substances Act, 1985 per the FIR capƟoned above, on the allegaƟons of possession of commercial quanƟty of 10 quintals 50 Kg. of poppy husk has come up before this Court under SecƟon 439 CrPC seeking bail.

2. In paragraph 13 of the peƟƟon, the peƟƟoner menƟoned that he has no criminal antecedents but as per custody cerƟficate dated 16.08.2023 shows that there is one case i.e. FIR No. 166 dated 25.06.2022 under SecƟon 52A(1) of Prison Act at Police StaƟon Division 7, Ludhiana in which sentence has already undergone on 26.04.2023. 3.

PeƟƟoner's counsel prays for bail by imposing any stringent condiƟons and is also voluntarily agreeable to the condiƟon that Ɵll the conclusion of the trial before the trial court, the peƟƟoner shall keep only one mobile number, which is menƟoned in AADHAR card, and within fiŌeen days of release from prison undertakes to disconnect all other mobile numbers. The peƟƟoner contends that the further pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family. 4.

While opposing the bail, the contenƟon on behalf of the State is that the quanƟty of contraband involved in the case falls in the commercial category. 5.

In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme

Court holds, [10] It is not in dispute and highlighted that the second respondent is a siƫng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiƩal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdicƟon of the Court etc.

6.

In Paramjeet Singh v. State of Punjab, 2022:PHHC:003983 [Para 8], CRM-M 50243 of 2021, this court observed, While considering each bail peƟƟon of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the anƟthesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First InformaƟon Reports, wherein the bail peƟƟoner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecuƟons resulƟng in acquiƩal or discharge, or when Courts quashed the FIR; the prosecuƟon stands withdrawn, or prosecuƟon filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

REASONING:

7.

As per the custody cerƟficate, the peƟƟoner's total custody is 3 years, 2 months and 2 days. Although the peƟƟoner has criminal antecedents but indisputably has spent more than three years in pre-trial custody in this FIR. Thus, he is enƟtled to bail based on Dheeraj Kumar Shukla v. The State of UƩar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023, not because his custody is of two years and six months but because his custody is more than three years and considering the nature of offence in earlier case, the criminal history should not come as a hindrance. 8.

The possibility of the accused influencing the invesƟgaƟon, tampering with evidence, inƟmidaƟng witnesses, and the likelihood of fleeing jusƟce, can be taken care of by imposing elaboraƟve and stringent condiƟons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons.

9.

Without commenƟng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menƟoned above, the peƟƟoner makes a case for bail, subject to the following terms and condiƟons, which shall be over and above and

irrespecƟve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 10.

In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed, [10] The exponenƟal growth in technology and arƟficial intelligence has transformed idenƟficaƟon techniques remarkably. Voice, gait, and facial recogniƟon are incredibly sophisƟcated and pervasive. ImpersonaƟon, as we know it tradiƟonally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jusƟce, then in such cases, appropriate condiƟons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.

[21] In this era when the knowledge revoluƟon has just begun, to keep pace with exponenƟal and unimaginable changes the technology has brought to human lives, it is only fiƫng that the dependence of the accused on surety is minimized by giving alternaƟve opƟons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 11.

Given above, provided the peƟƟoner is not required in any other case, the peƟƟoner shall be released on bail in the FIR capƟoned above, in the following terms: (a). PeƟƟoner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the saƟsfacƟon of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepƟng the surety, the concerned court must saƟsfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). PeƟƟoner to hand over to the concerned court a fixed deposit for Rs.

Ten thousand only (INR 10,000/-), with the clause of automaƟc renewal of the principal and the interest reverƟng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the peƟƟoner to prepare an account payee demand draŌ favouring concerned Chief Judicial Magistrate for the similar amount.

(c). Such court shall have a lien over the funds unƟl the case's closure or discharged by subsƟtuƟon, or up to the expiry of the period menƟoned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the enƟre amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

(d). The peƟƟoner is to also execute a bond for aƩendance in the concerned court(s) as and when asked to do so. The presentaƟon of the personal bond shall be deemed acceptance of the declaraƟons made in the bail peƟƟon and all other sƟpulaƟons, terms, and condiƟons of secƟon 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.

(e). While furnishing personal bond, the peƟƟoner shall menƟon the following personal idenƟficaƟon details:

1.

AADHAR number 2.

Passport number of an Indian ciƟzen, (If available), when the aƩesƟng officer/court deems appropriate or considers the accused as a flight risk.

3.

Mobile number (If available) 4.

E-Mail id (If available) 12.

The peƟƟoner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the police, or the court, or to tamper with the evidence.

13.

PeƟƟoner to comply with their undertaking made in the bail peƟƟon, made before this court through counsel as reflected at the beginning of this order or in earlier orders. If the peƟƟoner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vicƟm/complainant may file any such applicaƟon for the cancellaƟon of bail, and the State shall file the said applicaƟon. 14.

The peƟƟoner is directed not to keep more than one prepaid SIM, i.e., one prepaid mobile phone number, Ɵll the conclusion of the trial; however, this restricƟon is only on prepaid SIMs [mobile numbers] and not on post-paid connecƟons or landline numbers. The peƟƟoner must comply with this condiƟon within fiŌeen days of release

from prison. The concerned DySP shall also direct all the telecom service providers to deacƟvate all prepaid SIM cards and prepaid mobile numbers issued to the peƟƟoner, except the one that is menƟoned as the primary number/ default number linked with the AADHAAR card and further that Ɵll the no objecƟon from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the peƟƟoner's name.

Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direcƟons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the peƟƟoner, except the main number/default number linked with AADHAR, by taking such informaƟon from the peƟƟoner's AADHAR details or any other source, for which they shall be legally enƟtled by this order. This condiƟon shall conƟnue Ɵll the compleƟon of the trial or closure of the case, whichever is earlier. In Vernon v.

The State of Maharashtra, 2023 INSC 655, [para 45], while granƟng bail under Unlawful AcƟviƟes (PrevenƟon) Act, 2002, Supreme Court had directed imposiƟon of the similar condiƟon, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the Ɵme they remain on bail and shall inform the InvesƟgaƟng Officer of the NIA, their respecƟve mobile numbers."

15.

Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoner shall surrender all weapons, firearms, ammuniƟon, if any, along with the arms license to the concerned authority within fiŌeen days from release from prison and inform the InvesƟgator about the compliance. However, subject to the Indian Arms Act, 1959, the peƟƟoner shall be enƟtled to renew and take it back in case of acquiƩal in this case, provided otherwise permissible in the concerned rules. 16.

During the trial's pendency, if the peƟƟoner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condiƟon as sƟpulated in this order, it shall always be permissible to the respondent to apply for cancellaƟon of this bail. It shall further be open for any invesƟgaƟng agency to bring it to the noƟce of the court seized of the subsequent applicaƟon that the accused was earlier cauƟoned not to indulge in criminal acƟviƟes. Otherwise, the bail bonds shall remain in force throughout the trial and aŌer that in SecƟon 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condiƟons.

17.

The condiƟons menƟoned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ PeƟƟon

(Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condiƟons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporƟonal to the purpose of imposing them. The courts, while imposing bail condiƟons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condiƟons that would result in the deprivaƟon of rights and liberƟes must be eschewed."

18.

Any Advocate for the peƟƟoner and the Officer in whose presence the peƟƟoner puts signatures on personal bonds shall explain all condiƟons of this bail order in any language that the peƟƟoner understands.

19.

If the peƟƟoner finds bond amount beyond social and financial reach, it may be brought to the noƟce of this Court for appropriate reducƟon. Further, if the peƟƟoner finds bail condiƟon(s) as violaƟng fundamental, human, or other rights, or causing difficulty due to any situaƟon, then for modificaƟon of such term(s), the peƟƟoner may file a reasoned applicaƟon before this Court, and aŌer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condiƟon.

20. Any observaƟon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 21.

In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior. 22.

There would be no need for a cerƟfied copy of this order for furnishing bonds, and any Advocate for the PeƟƟoner can download this order along with case status from the official web page of this Court and aƩest it to be a true copy. In case the aƩesƟng officer wants to verify the authenƟcity, such an officer can also verify its authenƟcity and may download and use the downloaded copy for aƩesƟng bonds. PeƟƟon allowed in aforesaid terms. All pending applicaƟons, if any, stand disposed. (ANOOP CHITKARA) JUDGE 17.08.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.